Local government attorneys across the State subscribe to electronic-based or email discussion groups, more commonly known as “listservs.” Some actively participate in listserv discussions on a routine (if not daily) basis. Others passively observe. Lawyer listserv traffic can include information sharing, pointed legal questions, requests for information, and more. By way of example, in the past week, topics discussed on one local government attorney listserv ranged from voting obligations for boards of adjustments to interlocal 911 agreements. No matter the topic, listservs have become commonplace in the modern practice of law.

In May 2024, the American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility (“Committee”) issued Formal Opinion 511R: “Confidentiality Obligations of Lawyers Posting to Listservs,” providing guidance about when a lawyer may seek advice related to representation from an email-based community. This post highlights the relevant North Carolina Rules of Professional Conduct (“rules”), briefly summarizes the revised ABA opinion, and enumerates practical considerations for attorney engagement with email discussion groups.

North Carolina Rules of Professional Conduct

North Carolina Rule of Professional Conduct 1.6 is materially similar to the ABA model rule. Subsection (a) of the rule provides in relevant part: “A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Paragraph (b) contains certain exceptions to the confidentiality mandate, including, for example, “to prevent reasonably certain death or bodily harm,” “to prevent the commission of the crime by the client,” or “to comply with . . . the law or court order.” Subsection (c) of the rule further requires that a lawyer “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Comment 4 to Rule 1.6 emphasizes the importance of shielding confidential information, including “disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” The comment further indicates that “the use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”

Neither the State’s rules nor its ethics opinions reference listservs or email discussion groups. Further, no State court has addressed the propriety of listservs in the context of an attorney’s duty to confidentiality pursuant to Rule 1.6.

ABA Formal Ethics Opinion 511R

While ABA ethics opinions are advisory and not enforceable as law, they represent the “express policy” of the ABA and may provide persuasive authority. To be clear, the Committee did not in any way amend or alter model Rule 1.6. Instead, the opinion underscores a “hallmark” of the attorney-client relationship—confidentiality.

In short, Formal Opinion 511R offers the following guidance regarding the appropriate use of listservs:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation.

Practical Considerations

In light of Opinion 511R and North Carolina’s rules, consider the following when participating in a listserv:

1. Seek and Obtain Client’s Informed Consent. Before sharing any information or posing any questions or responses related to a representation in a listserv, seek and obtain the client’s explicit, informed consent. The rules define “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.” Before obtaining consent, the attorney should confer with the client and explain the advantages (e.g. seeking advice from knowledgeable colleagues) and disadvantages (e.g. widespread dissemination) of listserv engagement, as well as the intended use of the platform (e.g. transactional matters, ordinance drafting, resources related to litigation, or general policy questions). The opinion indicates that an attorney may seek informed consent from a client at the outset of the representation. The Committee suggests memorializing the client’s advance consent in the lawyer’s engagement agreement, for example. Yet, the opinion simultaneously cautions that “[i]t may not always be possible to provide sufficient detail” for purposes of informed consent “until considering an actual post.” On this point, attorneys may wish to draft a policy that not only clarifies an attorney’s general authority to disclose information related to representation via a listserv but also describes which circumstances require further authorization. Finally, the client’s consent should be explicit and affirmative. An attorney is not impliedly authorized to disclose information relating to the representation through a listserv. In this way, the opinion emphasizes that “[p]articipation in most lawyer listserv discussion groups is significantly different from seeking out an individual lawyer or personally selected group of lawyers practicing in other firms for a consultation about a matter.”
2. Avoid Disclosing Identifiable Information, Where Possible. For many local government attorneys, particularly those whose email addresses and/or signatures reveal the local government client, shielding the client’s identity will prove altogether impractical, if not impossible. Informed consent is especially paramount in this scenario. Keep in mind that the obligation to avoid disclosing information related to representation “applies equally when lawyers post on listservs for other purposes, such as to reply to requests for help, to develop their practices by networking, or simply to regale their professional colleagues with ‘war stories.’” Attorneys should avoid disclosing potential liability or information which may be prejudicial to their client entirely. Where the client or situation will never become known or where a question is so abstract or broadly applicable that it cannot be associated with a particular client, however, “a lawyer may post general questions or hypotheticals because there is no reasonable possibility that any listserv member, or anyone else with whom the post may be shared, could identify the specific client or matter.” Lastly, local government attorneys should ensure that they have redacted or removed any potentially identifying client information from the body of the email or its attachments before posting to a listserv.
3. Engage in General Inquiries and Discussions. The Committee acknowledged that listservs “serve a useful function in educating lawyers” and may even assist attorneys in “keep[ing] abreast of changes in the law and its practice,” Comment 8 to Rule 1.1, such as “updat[ing] one another about newly published decisions and articles or to share recommendations for helpful contractors or fellow practitioners.” As noted above, the opinion allows and (perhaps even encourages) lawyers to participate in listserv discussions “related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation.” Key takeaway: instead of presenting unique facts related to a particular matter, discuss general legal principles, developments, forms, or procedures.

Listservs can serve as a valuable tool in modern legal representation. Engagement with a listserv may promote professional networking and collaborative problem solving. However, Opinion 511R serves as an important reminder that confidentiality comes first. Obtain the client’s informed consent and proceed cautiously when communicating on a listserv to ensure compliance with guidance from the Committee and our rules.

For those interested in the local government lawyers listserv hosted by the School of Government (and in the unlikely event that this post has not deterred listserv participation), subscribe here.